General Terms and Conditions of Delivery and Service of IMPEX Forstmaschinen GmbH

1. general – scope of application

The following terms and conditions apply to all current and future business relationships with contractual partners who are not consumers within the meaning of the German Civil Code. laws are.
Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract, even if they are known, unless their validity is agreed to in writing.

2. conclusion of contract

Our offers and cost estimates are non-binding and subject to change unless we have expressly designated them as binding. If a contract is concluded, we shall only be obliged to provide such deliveries and/or services as are expressly specified therein. By ordering the goods, the customer makes a binding declaration that he wishes to purchase them.
We are entitled to accept the contractual offer contained in the order within a period of two weeks after receipt. Acceptance can be declared either in writing or by delivery to the customer. The same applies to additions or amendments to contracts.

No rights can be derived against us from information, advice (also in connection with repairs and inspection work), instructions for use, etc. – except in the case of gross negligence (intent and gross negligence).
All documents made available to the customer (e.g. technical descriptions, drawings, illustrations, color, dimension and weight specifications) contain only approximate values customary in the industry. We reserve the right to make technical changes as well as changes in shape, color and/or weight within reasonable limits. For standardized goods, the tolerances permitted on the standard sheets apply. We reserve the property rights and copyrights to all these documents. They may not be used in any other way without our consent, in particular they may not be reproduced or made accessible to third parties.

3. reservation of title

We reserve title to the items delivered and/or installed by us until all claims to which we are entitled under this contract and the ongoing business relationship have been settled in full.
The customer is obliged to treat the equipment and goods with care. If maintenance and inspection work is required, he must also have this carried out immediately by us or a workshop recognized by us or the manufacturer.
The customer is obliged to inform us immediately of any access by third parties to the goods, for example in the event of seizure, as well as of any damage to or destruction of the goods. He must immediately report any change of ownership or change of residence or registered office.

In the event of breach of contract by the Buyer, e.g. default in payment or breach of his obligation under clauses 2 and 3 of this provision, we shall be entitled to take back the reserved goods after setting a reasonable period of grace.

The customer is entitled to resell the goods in the ordinary course of business. The customer may only transfer ownership of the goods subject to retention of title to his acceptance after our claim has been settled in full.
The customer assigns to us in advance as security all claims and ancillary rights to which he is entitled in connection with the resale, as well as any claims against his insurer. We hereby accept the assignment. In the event that the goods are exported, the customer hereby assigns to us all claims to which it is or will be entitled in the future against domestic and foreign banks in connection with the export, in particular claims arising from collection orders, letters of credit or confirmations of letters of credit, as well as from sureties and guarantees. If the goods subject to retention of title are sold by the customer together with other goods not belonging to us, whether without or after processing, the claims shall be assigned to us in the amount of the invoice value of the goods subject to retention of title. We also accept the assignment in this respect.

The customer is entitled and obliged to collect the claim from the resale despite the assignment as long as we do not revoke this authorization. He must immediately transfer the collected amounts to us in the full amount of the claims to which we are entitled.

The handling and processing of the goods by the customer is always carried out in our name and on our behalf. If processing is carried out with objects not belonging to us, we shall acquire co-ownership of the new object in proportion to the value of the goods supplied by us in relation to the other processed objects. The same applies if the goods are mixed with other items that do not belong to us.

4. remuneration

All prices are quoted net in euros ex works excluding transportation, packaging and other ancillary costs (in particular for assembly and commissioning) as well as VAT at the applicable statutory rate.
If it has been agreed with the customer that the deliveries and services to be provided by us shall be invoiced on a time and material basis, without making any special provisions regarding the invoicing of the time and material, the hourly and cost rates of our repair/customer service department valid at the time of conclusion of the contract shall apply in this respect.

If, in the case of contracts which only provide for delivery/service for a period of more than four months after conclusion of the contract, cost increases occur during the period from conclusion to execution of the contract (due to changes in collective agreements, price increases at suppliers or similar), we shall be entitled to demand a correspondingly adjusted price which corresponds to our price valid at the time of execution of the contract.

5. payments

Unless otherwise expressly agreed, all payments shall be made either upon delivery of the goods/services to the customer or within ten days of the invoice date, whichever is earlier.
During the period of default, the customer shall pay interest on the debt in the amount of 8% above the base interest rate, unless a higher damage caused by default is proven.

If payment by installments has been agreed and the customer is more than ten calendar days in arrears with an installment in whole or in part, or if the customer violates one of the obligations arising from the agreed retention of title, the entire remaining debt shall become due for payment immediately.

We accept bills of exchange only after prior written agreement and only subject to their discountability. All discount charges and other ancillary costs shall be borne by the customer and shall be reimbursed to us immediately. Amounts paid by bill of exchange or check shall only be credited when their equivalent value is available to us without reservation.

If, after conclusion of the contract, we become aware of circumstances which cast doubt on the solvency or creditworthiness of the customer (e.g. default of payment, late redemption of bills of exchange or checks, entry in the debtor register, applications for insolvency proceedings or similar), we shall be entitled to refuse the delivery/service incumbent on us until the customer has rendered the consideration and fulfilled our due claims – also from any other transactions of an ongoing business relationship – or has provided security for them.
The customer shall only have a right of set-off if his counterclaim has been legally established or recognized by us and is based on the same contractual relationship.

Unless it is a commercial transaction for both parties within the meaning of § 354 a HGB (German Commercial Code), the customer is not entitled to transfer claims against us to third parties without our written consent.

6. deadlines/dates

Delivery/service deadlines and dates are only binding for us if they have been expressly agreed in writing.
Force majeure and other extraordinary circumstances, such as in particular labor disputes, sovereign measures and traffic disruptions, regardless of whether they have occurred at our premises or those of our suppliers, shall release us completely from the obligation to deliver and perform for the duration of their effects and if they lead to the impossibility of performance. Any agreed contractual penalty shall not be deemed forfeited under these circumstances.

The deadlines and delivery dates shall commence on the date of our written declaration of acceptance or confirmation, but not before the customer has provided the documents, approvals and releases to be procured and all other necessary requirements have been met. They shall be interrupted if the customer is in default with the provision of advance payments, the provision of securities or if delivery/performance by us cannot be demanded due to the conditions stated in § 5.

7. deadlines/dates

The customer must accept or approve the delivery/service immediately upon our request.
If the customer does not accept the delivery/service, we are entitled to refuse to fulfill the contract after a further period of 14 days and to demand compensation, at our discretion either compensation for the damage incurred or – without proof of such – 20% of the agreed price as lump-sum compensation.

Unless otherwise expressly agreed, the risk of accidental loss and accidental deterioration of the goods shall pass to the Buyer upon handover or, in the case of sale by delivery to a place other than the place of performance, upon delivery of the goods to the forwarding agent, carrier or other person designated to carry out the shipment. If the buyer is in default of acceptance, this shall be deemed equivalent to handover.
If the acceptance/acceptance or delivery is delayed for reasons for which the customer is responsible, the risk shall pass to the customer in accordance with the provisions of the contract. Section 2 to the customer.

8. warranty

We shall initially provide a warranty for defects in the goods at our discretion by repair or replacement. We shall be granted a reasonable period of time for replacement delivery and rectification.

We shall only be obliged to repair or replace the goods after payment of a reasonable part of the total claim, taking into account the defect.

The customer must report obvious defects in writing within a period of two weeks from receipt of the goods, otherwise the assertion of warranty claims is excluded.
In principle, only the manufacturer’s product descriptions and expressly contractually stipulated warranties shall be deemed agreed as the quality of the goods. Public statements, promotions or advertising by the manufacturer do not constitute a contractual description of the quality of the goods, unless expressly agreed otherwise.
5. if a repeated (at least two) rectification of defects fails or is not carried out despite the setting of a reasonable deadline, the customer may, at his discretion, demand a reduction of the remuneration (reduction) or rescission of the contract (withdrawal). However, the customer shall not be entitled to withdraw from the contract in the event of only a minor breach of contract, in particular only minor defects.

9. warranty periods and limitation of liability

The warranty period for new machines is one year or 1200 operating hours, whichever comes first, from delivery of the goods.
Unless otherwise agreed in writing, the sale of used machines is subject to the exclusion of all warranties.
3. liability in the event of a slightly negligent breach of duty is limited to the typically occurring, foreseeable damage. This also applies to slightly negligent breaches of duty by our legal representatives or vicarious agents. The above limitation of liability shall not apply if cover is provided under a liability insurance policy for property damage. If the insurance does not cover the damage, we ourselves shall be liable in accordance with sentence 1 if the property damage is due to the culpable breach of a material obligation or a cardinal obligation.

The above limitations of liability do not affect the customer’s claims arising from product liability. Furthermore, the limitations of liability shall not apply in the event of physical injury or damage to health attributable to us or in the event of loss of life of a customer.

5. claims for damages by the customer due to a defect shall lapse one year after delivery of the goods. This shall not apply if we can be accused of gross negligence or fraudulent intent or in the event of physical injury or damage to health attributable to us or in the event of the loss of a customer’s life.

10. final provisions

The law of the Federal Republic of Germany shall apply. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be our registered office. The same applies if the customer does not have a general place of jurisdiction in Germany or if his place of residence or habitual abode is unknown at the time the action is brought.
Should individual provisions of the contract with the customer, including these GTCs, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.

As of 30.11.07